Testimony to the New York State Assembly
www.elderjusticeny.org
Standing Committee on Children and Families
Topic: Statewide Central Register of Child Abuse and Maltreatment
Public Hearing: October 9, 2024
Submitted by:
Sarah Hedden, Esq., MSW Managing
Attorney
shedden@elderjusticeny.org (716) 853-3087 ext. 230
Thank you for the opportunity to provide testimony today on the Statewide Central Register of Child Abuse and Maltreatment, and the reporting process. The Center for Elder Law & Justice (“CELJ”) has been serving the Western New York region for over 45 years, providing free civil legal services to older adults, persons with disabilities, and low-income families. CELJ’s primary goal is to use the legal system to ensure that individuals may live independently and with dignity. CELJ also advocates for policy and systems change, particularly in the areas of elder abuse prevention, nursing home reform, consumer protection, and housing reform. Currently, CELJ provides full legal representation in ten counties of Western New York. CELJ’s Free Senior Legal Advice Helpline is open to all of New York State.
CELJ’s work focuses on fourteen practice areas and has represented kinship caregivers since 2000. Our attorneys provide full scope representation throughout the court process, and our social workers assist in linking caregivers with service providers, applying for benefits, and assisting in meeting other needs which helps prevent disruptions in placement until the children can be reunified with their parents.
Our testimony focuses on the impact of the mandatory reporting by social workers in the civil legal services setting and offer recommendations to address this impact.
Social Workers in Law Offices
There is no question that attorneys’ and social workers’ combined skills and areas of expertise can enhance a law firm’s ability to provide holistic services to clients. Law firms, especially legal non-profits, are aware of the benefits a social worker can bring to their staff. A social worker in the legal setting can provide additional support and resources to clients, while they experience some of the most difficult legal issues. However, as the laws in New York currently stand, a social worker’s employment in a law firm can risk immense repercussions for both the attorneys and social workers.
The New York State Social Service Law § 413 requires social workers to report child abuse or neglect when the social worker interacts with a child, or the person legally responsible for the child, “in their professional or official capacity,” and from the interaction the social worker has “reasonable cause to suspect” the child is abused or maltreated. 1 Therefore, if a social worker interacts with a client in their professional capacity and suspects the client is perpetrating maltreatment, or was experiencing abuse or maltreatment, the social worker would be obligated to report the suspected abuse. 2 NY Social Service Law § 420, provides the penalties for failing to report suspected abuse or maltreatment. Professionals that are required to report suspected child abuse who willfully fail to report, can be found guilty of a class A misdemeanor, and can be “found civilly liable for any damages proximately caused by” a failure to report. 3
The social work profession is broad and encompasses professionals across many different settings and practice areas. A social worker may have their bachelor’s degree in social worker (BSW), their master’s degree (MSW), have a social work license (LMSW), or their clinical license (LCMSW). The NYS Social Service Law does not directly define social work, but Social Service Law § 413 specifies that social workers, school social workers, and social services workers are mandated reporters. 4 The New York Education Law defines the practice of licensed master of social work and the practice of clinical social work. 5 The National Association of Social Workers (NASW) defines the practice of social work as applying social work values and techniques to the following professional activities: “helping people obtain tangible services; counseling and psychotherapy with individuals, families, and groups; helping communities or groups provide or improve social and health services; and participating in legislative proceedings.” 6 The NYS Social Service Law § 413 use of the term “social worker” encompasses the wide variety of social workers and social work practice that exists, and is assumed to include every type of social worker.
In stark contrast, the New York Rules of Professional Conduct have strict confidentiality requirements for lawyers and non-lawyer employees. The Rules of Professional Conduct apply to non-lawyer employees under Rule 5.3. Rule 5.3 (b) states, lawyers are responsible for nonlawyer employee conduct that violates these rules when the lawyer directs the conduct, or the supervisory lawyer knew or should have known of the conduct and failed to prevent the violation or take remedial action. 7 Meaning, supervisory lawyers are responsible for ensuring nonlawyer employees follow the Rules of Professional Conduct, including confidentiality requirements. Rule 1.6 (a) states, a lawyer “shall not knowingly reveal confidential information…or use such information to the disadvantage of a client” unless the lawyer has the client’s informed consent, or the disclosure is impliedly authorized to advance the client’s best interest. 8 Rule 1.6 (b)
1 N.Y. Social Service Law § 413 (Consol. 2024).
2 Lawyers with their degrees in Social Work are not mandated reporters when their professional capacity is as an attorney.
3 N.Y. Social Service Law § 420 (Consol. 2024).
4 N.Y. Social Service Law § 413 (Consol. 2024).
5 N.Y. Education § 7701 (Consol. 2024).
6 NATIONAL ASSOCIATION OF SOCIAL WORKERS, https://www.socialworkers.org/Practice#:~:text=Social%20work%20practice%20consists%20of,provide%2 0or%20improve%20social%20and (last visited Aug. 2, 2024).
7 N.Y. Rules of Professional Conduct R. 5.3.
8 N.Y. Rules of Professional Conduct R. 1.6.
provides exceptions to the general confidentiality rule. Rule 1.6 (b) states, a lawyer may reveal confidential information if the lawyer believes it to be reasonably necessary and the disclosure is “to prevent reasonably certain death or substantial bodily harm.” 9
Although the Rules of Professional Conduct do provide this narrow exception to the confidentiality requirement, the standard to report child abuse and maltreatment is far broader. Under the confidentiality exception the lawyer or nonlawyer may breach confidentiality only when there is “reasonably certain death” or “substantial bodily harm.” This is far stricter than the Social Service Law which requires professionals to report for “suspected child abuse.” Meaning, a social worker complying with the Rules of Professional Conduct will be in violation of the Social Service Law by failing to report suspected child abuse that does not rise to the standard of “reasonably certain death or substantial bodily harm.” Similarly, a lawyer would be in violation of the Rules of Professional Conduct by allowing an employee to breach confidentiality to report suspected child abuse that does not rise to the stricter standard. Additionally, a lawyer is subject to disciplinary action when there is a violation of the rules which may include a suspension or loss of their legal license.
State and National Landscape
Although most legal service agencies and firms have operated as though the legal Rules of Professional Conduct and the attorney-client privilege outweigh the Social Service Law, a New York Court has never directly litigated the issue. However, New York Courts have found that a social worker hired by an attorney is included in the attorney’s attorney-client privilege and work product privilege for the purposes of discovery and evidence during litigation. 10 In the case of Renee v. Michael B., the court held that a child’s communication with a law guardian, and the social worker hired by the law guardian, implicated the attorney-client privilege and the attorney work product privilege. 11 Although this case highlights that the attorney-client privilege and work product doctrines do protect social workers for evidentiary purposes, it does not address the issue of mandated reporting.
Claims of violating the mandated reporting laws and the Rules of Professional Conduct have been made against lawyers and the social workers they employ. 12 In the case of Wexler, the plaintiff brought claims against the non-profit legal service agency, Lawyers for Children, Inc., and named several employees as defendants including lawyers and social workers who were allegedly involved in the custody proceedings regarding the plaintiff’s child. 13 The plaintiff brought multiple federal claims, and the case was heard in federal court. In addition to the plaintiff’s federal claims, the plaintiff alleged the defendants “violated either several provisions of the New York Rules of Professional Conduct…or their duty to act as mandatory reporters…and have endangered the welfare of a child under New York Penal Law § 260.10.” 14 However, the Court dismissed the federal claims, and so did not address the New York State
9 Id.
10 In re Lenny McN, 183 A.D.2d 627 (1st Dept., 1992); Renee v. Michael B , 227 A.D.2d 315 (1st Dept., 1996).
11 Renee, 227 A.D.2d at 315
12 Wexler v. Laws. For Child., Inc., 2024 U.S. Dist. LEXIS 132548 (S.D.N.Y 2024)
13 Id. at 3.
14 Id
claims. Although the violations were not directly addressed in the case, the allegations highlight the potential for litigation involving these conflicting laws.
In Louisiana, social workers are included in their mandated reporting law. However, a social worker is not considered a mandated reporter when they are retained by an attorney to assist in legal services for a child, when the basis for the potential report arises from the furtherance of the legal services for the child, and when the mental health or social service provider documents the basis for the potential report. 15 The Louisiana legislature opted to provide a narrow exception to social workers that specifically work with attorneys that provide legal services to children. The statute requires the social worker to maintain documentation regarding any basis for a potential report. The documentation must be maintained until one year after the child has reached the age of majority. 16
The legislative comments for the Louisiana statute emphasize the importance of providing holistic and interdisciplinary services. The comment states that without the additional protections for social workers and lawyers provided in the statute, attorneys would be forced to choose between foregoing necessary social work and practitioner services and risking the breach of confidentiality that is contrary to their client’s legal goals. 17 The legislature additionally points to the Supreme Court case Ake v. Oklahoma to demonstrate the Supreme Court’s long-standing recognition of a mental health professionals’ important role in legal defense and services. 18
The District of Columbia took a different and more straightforward approach to their exception in the mandated reporting law. The DC Bar contemplated their contradictory laws in a 1998 ethics opinion 19 and in 2008 the legislature amended their code to resolve the conflict. The DC code defines social service workers as mandated reporters, and states that a mandated reporter shall not be required to report when they are employed or supervised by a lawyer and the basis for their potential report arises solely from the course of legal representation or the course of seeking legal representation. 20 The D.C. code excludes all mandated reporters that are employed or supervised by criminal, civil, and family law attorneys. 21 The statute makes clear provisions for both current and potential clients of the lawyer. This law is broader than the approach in Louisiana and provides well-defined protections for social workers and lawyers that are navigating mandated reporting in the legal setting.
Recommendations
The conflicting laws and requirements for lawyers and social workers are not conducive to the collaborative and highly beneficial working relationships social workers and lawyers have. The conflict between the laws has not been litigated in New York State, and leaves lawyers with
15 LA. CHILD. CODE. ANN. ART. 603 (2024)
16 Id
17 Louisiana Official Revision Comments 2015.
18 Ake v. Oklahoma, 470 U.S. 68 (1985) (finding that the State was required to provide a psychiatrist to the criminal defendant to help prepare their insanity defense).
19 D.C. Bar Ethics Opinion 282 (1998) (concluding that clients should be informed of the conflicting nature between social worker’s duty to report and the law firm’s duty of confidentiality).
20 D.C. CODE § 4-1321.02 (2024).
21 Id
unclear guidance in the hiring and supervision of social work staff. Lawyers and social workers alike should not have to fear repercussion simply by having social workers on staff at a legal agency.
Social workers have become a vital part of many legal service providers, especially nonprofit legal firms. Clients seeking legal representation often have complex and multifaceted issues that need effective interdisciplinary intervention. Lawyers and social workers should not have to compromise the services they can provide to protect their license. Amending the New York State Social Service law to exempt social workers practicing in a legal setting is a simple and comprehensive solution to the conflicting laws and risks that currently exist when employing social workers in law firms.
We recommend amending the Social Services Law to exempt social workers who work for an attorney from being mandated to report reasonable suspicions of child maltreatment. This would allow clients, particularly those served by civil legal services firms who otherwise could not afford representation and are underserved, to continue to receive assistance beyond the legal assistance provided and to continue to wholly meet their needs. It would further eliminate the criminal and civil risk to social workers working for law offices, and the civil and licensure risk to the attorney and organizations who employ them.
The amendment to the New York State Social Service Law § 413 should model the language in the D.C. Code § 4-1321.02. The language in the D.C. code exempts all employees supervised by an attorney from their ordinary mandated reporting requirements. 22 This approach would bring a clear resolution to the issue of employing social workers in a legal setting. A new section to the New York State Social Service Law § 413 should be added to say:
“6. Notwithstanding any other law, the identified professionals required to report cases of suspected child abuse shall not be required to report when:
A. Employed or supervised by a lawyer who is providing representation in a criminal or civil matter, and the basis for the belief arises solely in the course of that representation; or
B. Employed or supervised by a lawyer with whom a prospective client is seeking representation in a criminal or civil matter, and the basis for the belief arises solely in the course of seeking that representation.” 23
22 D.C. CODE § 4-1321.02 (2024).
23 Proposed sections A and B are quoted directly from the D.C. CODE § 4-1321.02 (2024).